Will Canada’s Ruling on Drug Sentences Set the Stage for Further Reforms?

Imagine this: You’re a person living with HIV and hepatitis C virus (HCV), and you’re arrested for selling a small amount of heroin to support your drug dependence. Before your sentencing, you enter a drug treatment program and take steps to address your dependence.

The judge applauds your progress and acknowledges the negative health impacts incarceration will have. But his hands are tied, because there’s another drug-related conviction on your record from nearly a decade ago. Against all reason, you receive an automatic one-year prison sentence.

In Canada, these are the sorts of irrational sentencing rules that compromise access to treatment or scientifically proven harm reduction measures for people who use drugs.

But sentences like these may soon be a thing of the past in Canada. On April 15, in its 6–3 decision in R. v. Lloyd, the Supreme Court struck down mandatory minimum sentences for certain drug offenses, calling them a “constitutional infirmity” that violates the guarantee against cruel and unusual punishment in section 12 of the Canadian Charter of Rights and Freedoms.

It was a significant victory that brings Canada closer to fixing a major flaw in its justice system. Canada’s previous federal government passed a number of damaging drug laws, packaged in a widely criticized omnibus crime bill, the so-called Safe Streets and Communities Act. Under that law, a person facing conviction for trafficking was automatically subject to one year in prison if they had already been convicted of a designated substance offense in the past 10 years. (Trafficking is a vague concept that encompasses many behaviors, including simply sharing drugs.)

In the words of Chief Justice Beverley McLachlin, writing for the majority, such mandatory minimum sentences cast a “wide net” that risks catching “not only the serious drug trafficking that is its proper aim, but conduct that is much less blameworthy.”

For years, the Canadian HIV/AIDS Legal Network has been speaking out, including in Parliament, against mandatory minimum prison sentences for drug offenses. We’ve outlined why everyone loses under such poorly conceived criminal justice policy, and mobilized evidence-informed opposition to these ill-advised laws. Mandatory minimum prison sentences for drug offenses not only damage the health of people who use drugs (including those living with HIV or hepatitis C) but also undermine public health more broadly by fueling these epidemics.

In R. v. Lloyd, along with a coalition of health and human rights groups, including people who use drugs, we pointed out to the court that many individuals caught by the mandatory minimum sentencing law may be drug-dependent and living with HIV or HCV. Mandating prison time for these individuals can disrupt their treatment. Furthermore, prolonging incarceration puts people who use drugs at increased risk of returning to their communities with HIV or HCV, and of suffering fatal overdose because of a lack of adequate prison-based harm reduction services.

The court’s decision goes into immediate effect, but there’s much more work to be done. Our work on this case is part of our larger effort to put an end to the disastrous, punitive approach to drugs and to promote, instead, an approach based on public health and human rights.

While the court’s decision stops short of mentioning HIV or HCV, it nevertheless takes health matters into consideration. Specifically, the judgment denounces the grossly disproportionate impact of a one-year mandatory minimum sentence on individuals whose treatment for drug dependence would be interrupted. This position is doubly important, as it shows the Supreme Court recognizes that people involved in trafficking may be doing so to support their own dependence and that automatic jail time in such circumstances is harmful and inappropriate.

From a political perspective, this decision presents an opportunity for the federal government to undo Canada’s punitive arsenal of harmful drug laws. The former government pushed through mandatory sentencing for drug crimes, despite objections from opposition lawmakers and legal and medical experts, and despite overwhelming evidence about the ineffectiveness of such laws. The current government has already expressed support for a fresh approach to drug policy based on human rights and public health.

In addition to eliminating all mandatory minimum sentencing laws for drug-related offenses, the Canadian government’s approach should include decriminalizing possession of all drugs for personal use, and ensuring access to comprehensive harm reduction services as well as medical treatment for drug dependence and infection with HIV and HCV, both inside prisons and out.